Three terms ago this Court concluded in Federal Trade Commission versus Standard Oil Company of California that an administrative complaint should not be subjected to routine judicial review to determine whether it had been properly issued because such review necessarily resulted in undue delay in the resolution of the administrative proceeding, improperly subjected or rendered the prosecuting agency the Defendant at the very outset of its proceeding, and in the end resulted in unnecessary and piecemeal appellate review.

Although this case arises in a somewhat different context, it presents a very similar issue, that is, whether there must be a trial and a consequent judicious or appellate review, with all the attendant delays, of the question whether or not a complaint under Title VII of the Civil Rights Act of 1964 has been properly issued.

The practical considerations that compelled this Court's result in the SOCAL case requires similar result here.

Unidentified Justice: Mr. Wilkins, you say that one of the issues here is whether there must be a trial.

Even in the days before the Federal Rules of Civil Procedure were adopted and complaints were held to a fairly strict standard of pleading facts, I don't think there ever were trials with witnesses called.

Richard G. Wilkins: I misspoke.

I meant some sort of a hearing, some sort of judicial probing into those facts.

Commissioner Norton stated that she had cause to believe that the Respondent had unlawfully excluded Blacks from managerial, professional, technical, office clerical craft, and service worker positions, and had similarly excluded women from managerial, professional, technical craft, operative labor, and service worker positions.

A copy of the charge was duly filed on the Respondent, and it was subsequently amended to state that Commissioner Norton had reason to believe that the acts had occurred on a continuing basis since at least July 1965.

The Commission then began an investigation to determine whether there was reasonable cause to support the allegations of Commissioner Norton's complaint.

The Commission, pursuant to Section 709(a) of the Act, requested the Respondent to provide certain employment information.

The Respondent, on the basis of its own statistical analysis, refused, arguing that its employment practices did not...

"Were clearly not the profile anticipated for a Commissioner's charge. "

After informal methods of administrative investigation failed, the Commission filed a subpoena pursuant to Section 710, and the Respondent filed this action to squash the subpoena and enjoin the Commission's investigation.

The Respondent argued that Commissioner Norton had not shown sufficient facts to form a basis for her allegations of discrimination.

The District Court dismissed these factual specificity arguments as meritless and enforced the Commission's subpoena.

On appeal, the Eighth Circuit reversed, however, finding that there was indeed insufficient factual basis to support the charge.

On denial of a hearing en banc, Chief Judge Lay of the Eighth District dissented, stating that the decision placed the circuit in direct conflict with the decisions of all other courts of appeal addressing the issue of factual allegations in a Title VII charge.

Unidentified Justice: Was he alone in the dissent?

Richard G. Wilkins: He was alone in the dissent as far as I am aware.

As noted by Chief Judge Lay, the single most significant characteristic of the decision below is that it does fly in the face of previously uniform precedent rejecting any factual pleading requirement for Title VII charges.

Indeed, since the decision below was rendered, two additional courts of appeals have looked at the question and have concluded that the factual pleading requirement created by the court below is inappropriate and is not in conformity with the Title VII enforcement scheme.

This Court has recognized that Title VII creates an integrated, multi-step enforcement procedure culminating in the Commission's authority to bring an enforcement action in Federal Court.

Unidentified Justice: Mr. Wilkins, I think that the Eighth Circuit relied on a particular provision of the Civil Rights Act, did it not?

Richard G. Wilkins: Exactly.

Section 707 of the Civil Rights Act authorizes the Commission to... authorizes a member of the Commission to file a complaint based upon a suspected pattern or practice of discrimination.

Section 706(b) requires that that charge be in writing, under oath or affirmation, and contain such information and be in such form as the Commission requires.

Section 706(b) also requires that within ten days, the Commission serve a copy or a notice of the charge on the Respondent containing the date, place and circumstances of the alleged--

Unidentified Justice: And it was that last language that you mention now that the Eighth Circuit relied on, wasn't it?

Richard G. Wilkins: --Exactly.

But the purpose of a charge, and the purpose of the notice of the charge under Section 706(b) have quite discrete and limited functions.

The charge does not begin in any sort of formal enforcement action.

It does not have, in the words of this Court's prior decisions involving similar issues,

"It does not have determinative consequences on the Respondent. "

Unidentified Justice: What has that got to do with the definition of the terms, date, place, and circumstances that Congress put in the Act.

Richard G. Wilkins: You have to look at what purpose Congress intended that notice provision to serve.

As we explain in some detail in our brief, prior to 1972, when that provision was added to the Act, the Commission, to prevent retaliation against complaining parties, developed a practice or adopted a practice of not serving a notice of the charge or a copy of the charge on the Respondent until Commission staff was available to begin investigation.

Congress was concerned in 1972 that this practice resulted in some delay between the time that the charge was filed and the time the Respondent was aware that the charge was indeed pending.

So it adopted this notice provision to ensure that, in the words of the legislative report,

"they would have fair notice that charges were pending against them. "

Unidentified Justice: They defined "fair notice" as including the date, place, and circumstances, didn't they?

Richard G. Wilkins: Yes, and this charge fully complied with that requirement.

The charge in this case informed the Respondent that a Commission of the EEOC had reason to believe that it discriminated against Blacks by excluding them from six specifically designated job categories, and women from seven specifically designated job categories since at least July 1965.

It gave them fair notice of date, place, and circumstances.

Unidentified Justice: You think that complied with the circumstances requirement?

Richard G. Wilkins: Yes.

Unidentified Justice: Mr. Wilkins.

Richard G. Wilkins: Yes.

Unidentified Justice: Why would the Government not want to provide, in these pattern and practice cases, the real circumstances that the Government is relying, the statistical information that they looked at.

What is the matter with furnishing that, to give the Respondent an actual look at what it is that prompted the filing; I just don't understand.

Richard G. Wilkins: There is a two-fold answer to that, Justice O'Connor, and I think there is a very good reason for not getting into that kind of detail at the very outset.

On the initial level, this is a pattern of practice charge, as the prior decisions of this Court recognized.

The pattern of practice charge is not based on specific, individual kinds of occurrences.

It is based on broad, general occurrences that take place over a period of time.

So it is impossible, it really is impossible to describe it beyond general terms.

Unidentified Justice: Sure, but what the Government in these cases is doing is putting together a few simple statistics covering given years, and saying these are the total number of employees in this category, and in that community there are so many Blacks, and so many women, and these are the actual figures that the company has.

Why can't you include that, and why shouldn't you that in the notice of the charge?

Richard G. Wilkins: As the Ninth Circuit noted in the Dean Witter case, to require the Commission to get into providing a certain level of factual specificity, or providing the statistics, would merely prompt, as what has happened in this case, the Respondent would come back and say,

"But my statistics show that... Our bottomline statistics show that we are in conformity. "

"Your statistics aren't adequate to commence this investigation. "

Going back to general notions of modus pleading--

Unidentified Justice: The Court doesn't have to buy that, obviously, as a requirement and the Court wouldn't necessarily have to turn this into a mini-trial.

But it is just... I just have difficulty understanding why the Government can't disclose in the notice of the charge what it really is basing this on.

Richard G. Wilkins: --As Professor Moore stated in his treatise on civil procedure, just as a general precept, a requirement that facts be pleaded in a charge is illusory and unsound.

It said that results in a battle of the form of pleadings.

Unidentified Justice: Sure, but we have the job of trying to figure out why Congress included this specific language, and they had something in mind and we have to determine what that something is.

It is just hard to know why the Government in these cases wouldn't want--

Let me ask you another question.

Suppose the notice of charge just said,

"The Commission believes that Shell has conducted discriminatory employment practices in its United States operations since 1965. "

Is that enough?

Richard G. Wilkins: I am not certain.

I believe that that probably would be insufficient, but here we don't have that sort of a charge.

They have been given the circumstances.

They have been told that they excluded Blacks from designated categories, and women from designated categories.

Perhaps if you understand the purpose or how the Title VII enforcement scheme proceeds, it would help you understand.

The charge under Section 706 does not commence a formal enforcement action.

It merely commences administrative investigation to determine whether there is reasonable cause to believe that the allegations of the charge are true.

When such reasonable cause is found, then the Commission attempts to conciliate the employment dispute and settle.

Only if such efforts fail, do you commence the formal enforcement action.

Therefore, in light of the limited function that the charge serves, requiring the Commission to come forth to present its facts, present its proof at the very outset is inappropriate.

Unidentified Justice: Mr. Wilkins, your answers assume that this is kind of a judicially fashioned doctrine.

Professor Moore has said pleading of facts is illusory and, therefore, why shouldn't the court strive to make that rule a common sense one.

But it is not a court rule at all, Congress has said "circumstances".

The Federal Rules of Civil Procedure don't say "circumstances".

Richard G. Wilkins: Yes, but, Justice Renquist, Congress in 1964 said that a commissioner's charge had to state its facts, and the courts never required that as requiring any sort of factual pleading.

Unidentified Justice: Do you think that those were sound decisions, if Cogress said "facts", and the courts said "no facts".

Richard G. Wilkins: I believe, when you look at the purpose and the overall Title VII enforcement scheme, I believe they were indeed sound decisions.

In 1972--

Unidentified Justice: How would you rationalize those?

You say that Congress had said that facts must be specified, and the courts said, no, you don't have to specify facts, and you say that those are sound decisions.

How would you explain that?

Richard G. Wilkins: --The uniform position that has been taken since 1964, beginning in the early '70s, in the Ninth Circuit's decision in Local 104 Sheetmetal Workers, was that the purpose of the charge is merely to commence an administrative investigation and inquiry to determine whether there is reasonable cause.

Because that is at the very outset, it is merely a prelude to the formal enforcement sorts of proceedings, it clearly would be an anomaly to require the Commission to present more facts, more factually specific material at the very beginning of its administrative investigation than it needs to present, indeed, to start a formal enforcement action in Federal District Court.

Unidentified Justice: In other words, Congress should have provided the same provisions as the Rules of Civil Procedure, and so we'll assume that it did.

That sounds like about the reasoning of those cases.

Richard G. Wilkins: The courts reasoned this way.

Section 707 in 1964 authorized the Attorney General to bring a pattern of practice charge.

That section also required the Attorney to set forth the facts upon which it was based, and the courts uniformly construed that as saying, we don't believe that Congress intended the Commission to have to state all of the facts underlying its... the Attorney General to state all the facts underlying its cause of action at the very outset.

The courts viewed that, well, then, if you are initiating merely an administrative proceeding before that, we will not impose a greater factual specificity burden at the outset than we do to file the formal enforcement action.

Unidentified Justice: Mr. Wilkins.

Richard G. Wilkins: Yes.

Unidentified Justice: Your position, of course, is that the charge adequately puts Shell Company, in this case, on fair notice as to what is being charged against it.

I have the appendix open at page 66, that is the commencement of the first request for information.

Richard G. Wilkins: Yes.

Unidentified Justice: Is that filed the same day the charge is filed?

Richard G. Wilkins: Yes.

I believe that that was filed along with the--

Unidentified Justice: Does that suggest to you that the EEOC either doesn't know the facts, the basic facts and circumstances, or does it suggest that it has them and is unwilling to disclose them?

Richard G. Wilkins: --It suggests to me, Justice Powell, that the Commission has sufficient facts to have reason to believe there is indeed a pattern of practice of discrimination.

The purpose of the administrative investigation is to determine what the actual cause of the pattern of practice that the Commission has.

Unidentified Justice: Is that first request for information a standard form?

Richard G. Wilkins: To the best of my knowledge there are standard requests that are made.

They are detailed to the particular needs of each case.

This is not a standard request that is just churned case after case.

There are elements that are asked in particular cases.

Unidentified Justice: It goes on for 16 pages, doesn't it?

Richard G. Wilkins: Yes, it does.

Unidentified Justice: If you were counsel for the company and received this, what would your reaction be?

Richard G. Wilkins: I am certain that I would sit down and recognize that I was going to be busy for the next little while.

Unidentified Justice: Little while... how many weeks?

Richard G. Wilkins: I have no way of knowing.

Unidentified Justice: How many people would be required in a major corporation to help you gather all of this information which really undresses the corporation for years.

Perhaps that is your purpose, but that is not the way Government normally operates.

Richard G. Wilkins: There's a couple of things to keep to bear in mind on this question.

First, the Commission has offered to send in its staff to help compile this information.

The Commission has also offered to pay--

Unidentified Justice: They aren't very helpful once in there.

Richard G. Wilkins: --The Commission also has procedures where it will help pay for the development of this information.

The District Court in this case found that this information sought was relevant to the administrative investigation, and the compliance with the request or with the subpoena was not unduly burdensome.

The Court of Appeals didn't disagree with that.

So while it may be extensive, and I don't disagree that it is extensive and that it would require some substantial looking, the Commission has offered to help in that looking, has offered to help pay for that looking, and the lower court did not find it unduly burdensome.

Unidentified Justice: I'll come back to my initial question.

If, indeed, the EEOC had enough information to make a charge, why was it necessary to file 16 pages of questions that asked every conceivable piece of information about the employment practices of this corporation over a period of years?

Richard G. Wilkins: That is the exact purpose of the conciliation and administrative litigation.

Unidentified Justice: They make a charge without knowing the circumstances.

Richard G. Wilkins: No, the purpose of the charge... In this case, we had from our analysis of the EEO-1 reports that had been filed by the Respondent, there were indications, statistical indications that Shell had engaged... had excluded Blacks and women from certain job categories.

It is not clear from those EEO-1 reports at the very outset exactly what happened, what's going on, what the underlying facts are.

Congress recognized that this would be the case and it would be the case at the very beginning of these systemic charges.

They're difficult to prove.

They're difficult to know... exactly what has happened over a period of years.

Unidentified Justice: Congress chose this very curious language, if it really understood that the agency was going to file this sort of fishing expedition; don't you think so?

You wouldn't be here if the language were more specific, perhaps.

Richard G. Wilkins: Well, Congress was aware in 1972 that the Commission needed more enforcement power and needed more investigatory power.

Indeed, they expressly empowered the Commission in 1972 to file these pattern of practice charges because, as you read in the legislative reports, the Commission has access to the statistical analyses, it has access to this information.

Because they knew that this information would be somewhat sketchy at the outset, it provided for this administrative investigation for the... It provided the Commission with the authority to request to inspect copy, to subpoena information to find out what is going on.

The Commission only undertakes conciliation efforts or, indeed, formal enforcement actions after it has looked at facts and determined that there is reasonable cause.

Unidentified Justice: Why didn't you... Why not furnish some of those facts that you have looked at?

Richard G. Wilkins: For the exact reason that has occurred in this case.

We allege we gave them the circumstances, we told--

Unidentified Justice: What do you think qualifies as the circumstances?

Richard G. Wilkins: --In this case, we told them that they excluded women from seven designated job categories, and Blacks from six designated job categories.

We told them what we believed they had done.

They argued, well, you don't have enough facts to prove that right now.

Our response is, of course, we don't, that is the purpose of the administrative investigation.

Congress didn't require us, Congress does not require us to have reasonable cause at this point.

Unidentified Justice: But you did have facts... You did have more facts than just an assertion that they had discriminated in these respects.

Richard G. Wilkins: Certainly, we had facts to back up those allegations.

Unidentified Justice: Why wouldn't you think that some summary of those facts shouldn't have been furnished?

Richard G. Wilkins: It may be wise, and the Commissioners, the individual Commissioners of the EEOC certainly have discretion to give those facts.

But any judicially imposed requirement that the Commission set forth its facts will clearly, as the Ninth Circuit--

Richard G. Wilkins: That is how you can understand the language, that is why I want to look at the history.

Unidentified Justice: I don't blame you.

Richard G. Wilkins: In '64, Congress provided that Commissioner's charges could only be filed when they set forth the facts on which they were based, and the Commissioner had reasonable cause to believe that a violation of the Act had occurred.

In 1972, as part of legislation that was generally designed, as this Court has recognized, to increase the enforcement powers of the Commission, Congress deleted these two requirements and rendered Commissioner's charges subject to the exact same requirements generally applicable to all charges, that is, they must be in writing, under oath or affirmation, and contain such information and be in such form as the Commission requires.

I think that is a very important factor that clearly was overlooked by the court below.

Unidentified Justice: You would be in a much better position if the provision that is at issue here had been included.

Richard G. Wilkins: But the purpose of the provision, Justice White, was, as I have said earlier, merely to provide that the Respondent had some notice of that charge.

Unidentified Justice: So you think that the Commissioner, in prescribing requirements which you mentioned a moment ago, can say, we are not going to require circumstances the way the other section does?

Richard G. Wilkins: Excuse me.

Unidentified Justice: You say that the statute provides that a charge shall be in such form as the Commission may provide.

Richard G. Wilkins: Yes.

Unidentified Justice: Do you think that the Commission could provide saying that the form of charge shall be the following, but it need not include either date, place, or circumstances?

Richard G. Wilkins: The charge could be... could provide that.

The notice, then, would have to provide the date, place, and circumstances.

But the Commission certainly could choose to say that the charge will have this information, and not necessarily include the date, place, and circumstances.

Unidentified Justice: Even though the notice of the charge would have to be more specific, then?

Richard G. Wilkins: No, the notice would have to include the date, place, and circumstances.

It is important to remember that the purpose of the notice provision was as we said, merely to provide notice.

The word "circumstances" does not in and of itself indicate some sort of a congressional intent to set forth the facts.

Indeed, Congress in 1972 deleted the requirement that the Commissioner's charge would set forth the facts.

Unidentified Justice: But, Mr. Wilkins, also, didn't the '64 Act require the Commissioner's charge to be based on reasonable cause?

Richard G. Wilkins: Yes.

Unidentified Justice: In '72, in those amendments, that requirement was dropped--

Richard G. Wilkins: Right.

Unidentified Justice: --But Congress tightened up in another way.

It said, okay, you don't have to show reasonable cause, but we do want you to put it under oath, and set forth the date, place, and circumstances.

It just looks on the surface like they wanted to tighten up the requirements of what you disclose as the basis for the charge, even though they dropped the reasonable cause requirement.

So I am not sure that the legislative history argument is helping you.

Richard G. Wilkins: Justice O'Connor, if you look at the comments that were made and the comments in the legislative report, there is no indication whatsoever that Congress felt that they were imposing any sort of a new factual pleading requirement or any kind of disclosure requirement.

When they talked about notice, they talked merely about informing the Respondent that a charge was actually pending against them, so that the Respondent could begin to prepare its defense and gather the information to sustain itself.

The charge in this case clearly performs those functions.

They don't need more information to be able to know that the charge is pending, to be able to gather their information, to be able to sustain themselves during the administrative investigation.

Unidentified Justice: Mr. Wilkins, may I ask you a rather fundamental question on another point which your argument has brought up.

In Part 3 of you brief... Up to now, you have basically been arguing the meaning of Section 706(b) of the statute.

In Part 3 of your brief, you refer to the SOCAL case.

You argue, if I understand you correctly, that the issue should not be reviewable at all until after the proceeding comes to an end.

You are relying, as I understand it, on the Administrative Procedure Act.

I am wondering whether, with reference to the SOCAL case, you're contending that this is not agency action at all, it is interlocutory agency action or that it is agency action under the limited discretion of the agency?

Which of those three positions?

Richard G. Wilkins: No, we are not really making any of those assertions, if I understand what you are getting at.

Unidentified Justice: I just want to understand exactly what your position is based on SOCAL.

Richard G. Wilkins: Our position based on SOCAL is that the issuance of an administrative complaint is something that can always be challenged.

If the Respondent in this case... there is always some sort of a standard, whether it is reasonable cause, or reason to believe--

Unidentified Justice: But is it always... can it be challenged in an independent proceeding in Federal Court or only in the proceeding itself?

Richard G. Wilkins: --After the SOCAL case... After the SOCAL decision, of course, they can't bring an initial proceeding under the Administrative Procedure Act.

In this case, the only reason this question arose is because there is a subpoena enforcement action, and they're still trying to make the same sort of an argument, that somehow this charge was improperly issued.

The Government's response is that the rationale of the SOCAL case applied across the board at this point.

This has no determinative requirement.

Unidentified Justice: Is it your position that in subpoena enforcement proceeding, they have no right to test the sufficiency of the charge?

Richard G. Wilkins: The sufficiency of the charge is to be determined in the administrative proceeding.

The subpoena--

Unidentified Justice: You should have won on motion to dismiss without even looking at the language of the charge, is what I am asking?

Richard G. Wilkins: --Exactly.

Unidentified Justice: Okay.

Richard G. Wilkins: If the Court has no further questions, I would like to reserve a few moments for rebuttal.

Chief Justice Warren E. Burger: Mr. Williams.

ORAL ARGUMENT OF ROBERT E. WILLIAMS, ESQ. ON BEHALF OF THE RESPONDENT

Robert E. Williams: Mr. Chief Justice, may it please the Court.

With the Court's permission.

I believe the questions that the Court has asked this morning focus on the narrow issue that is presented in this case, and that is what Congress meant when it specified in Section 706(b) that the Respondent in a Title VII proceeding must be notified of the date, place, and circumstances of the violations alleged in the charge.

The Commission is here arguing for an interpretation which in our view would effectively read the words

"date, place, and circumstances. "

out of the text of the statute.

They maintain that the only notice the Commission is required to give to a Respondent is notice of the fact that a charge is pending against it.

At no time, at least until this morning, has the Commission acknowledged any obligation to provide anything more than bare notice of the existence, of the pendency of the charge.

Perhaps counsel's qualified concession in answer to Justice O'Connor's question may indicate that there may be some need to provide something more than bare notice of existence, but whether it actually requires that a date, a place, or any circumstances at all be set forth has never been clarified from the Commission standpoint.

Unidentified Justice: Whether that is so or not, I understand counsel to say that any requirement like that is satisfied by the notice that was given in this case, and he says that saying there was discrimination in these particular categories is enough of a notice of the "circumstances".

Robert E. Williams: Which brings us back, Your Honor, to the basic question which is what did Congress mean by that word "circumstances".

We think the Eighth Circuit was right when it concluded that notice of date, place, and circumstances was intended to provide something more meaningful than a bare recitation of categories of alleged unlawful employment practices.

Unidentified Justice: What would you say they should have furnished to you?

Robert E. Williams: The word "circumstances", Your Honors, generally, in dictionary definitions and in court opinions, is tied to facts.

Unidentified Justice: I know, so I am asking you what facts do you think they should have given you?

Robert E. Williams: At a minimum... I think what the Eighth Circuit required in its decision really sets forth a very minimal standard.

It has been argued--

Unidentified Justice: What specifically would have satisfied you in this case?

Robert E. Williams: --In an instance such as this, where the charge apparently is based on statistics, the Eighth Circuit indicated that the fact that the charge is based, at least in part, on statistics, the general nature of the statistical data relied on--

Unidentified Justice: Because it is a practice, the charge necessarily is a statistical charge; is that it?

Robert E. Williams: --Well frankly, of course, we are at a disadvantage because we don't know for sure what this charge was based on.

The Government has some forward belatedly and made some assertions about what the charge was based on, but because the charge itself or the notice did not include any explication, we don't really know.

But assuming that their representations are correct, and that this charge was based on statistical compilations, comparisons between internal data that the company had provided to the EEOC with standard data referring to availability in the labor market, I think what the Eighth Circuit was indicating is the fact that those data were used, the general nature of the data, including dates that would enable the Respondent to identify what the Commission was basing this charge on, that is all that seems to be required.

The Court also indicated that in the instance where there is an individual charge that forms the basis for the Commissioner's charge that the identity of the individual need not be disclosed, but that the fact that it is based on an individual charge, coupled with some indication of the position held by that individual, ought to be provided.

Unidentified Justice: Suppose, in addition to actually furnishing you notice, giving circumstances some meaning, would also assure that the Commissioner actually had facts on which to base a charge.

Robert E. Williams: That would be correct, Your Honor.

Unidentified Justice: Mr. Williams, suppose the charge says that you have 316 people assigned to the broom section of your plant, and not a single woman is there.

Would you know what they were talking about?

Robert E. Williams: Yes, Your Honor, I think that would be sufficient.

Unidentified Justice: That would be all right.

Robert E. Williams: That would certainly set forth the circumstances.

Unidentified Justice: What would this one say?

This charge says that there were no women in one area, and no negroes in another area.

Robert E. Williams: The charge said that it charged Shell with discriminating in various forms of employment practice against Blacks and women.

It did not--

Unidentified Justice: Because there were none in these particular sections.

Robert E. Williams: --It didn't say that the Commission had considered that there were none in certain sections.

Unidentified Justice: Didn't it say that?

Robert E. Williams: That information did not come forward until much later on in this litigation, Your Honor.

Unidentified Justice: Didn't you know what they were talking about?

Robert E. Williams: Well, Your Honor--

Unidentified Justice: The question is, didn't you know what they were talking about.

Robert E. Williams: --The Joint Appendix sets forth documents, about six months of correspondence and meetings between Shell and the Commission.

Unidentified Justice: I am asking you.

You didn't know what they were talking... You didn't know what they were talking about; is that your position or not?

Robert E. Williams: Yes, Your Honor, that is the position.

During those meetings and in that correspondence, the company repeatedly asked the Commission point blank,

"What is this charge based on? "

"What statistics have you considered, if you are basing it on statistics? "

The Commission's response was a consistent stonewall.

The answer that came back was,

"We don't have to tell you. "

"You are invading our agency privilege. "

Unidentified Justice: Who had the facts, the agency or you... your client?

Robert E. Williams: Of course, the--

Unidentified Justice: Who had it the first?

Robert E. Williams: --The company has facts, and the agency purportedly has some facts that it has considered in determining to bring this charge.

But the issue as we see it is whether the agency has complied with the statutory requirement of giving a sufficient indication of what the charge is based on in order to meet the notice requirement.

Unidentified Justice: Mr. Williams, what if the EEOC in a pattern of practice case did give you information that it was basing their charge on statistical compilations it had made, let's say, the years '78 and '79, which reflected an insufficient number of women and Blacks being hired in certain categories, so you got presumably what you're asserting you should have had.

Then, let's suppose they issue subpoenas asking for information relating to the year '77 as well as '78 and '79, because they want to dig into the real facts, maybe they'd like to amend the charge later, maybe they think that what was done before is relevant somehow to '78 and 79.

Would it be your position that you could challenge them on a subpoena request for prior years because it didn't relate to those years--

Robert E. Williams: No, Your Honor.

Unidentified Justice: --specified in the charge?

Robert E. Williams: No, Your Honor, it would not.

We are not here disputing the Commission's broad investigatory power or their subpoena power once a valid charge and notice has been provided.

Unidentified Justice: You concede that the subpoena could request any relevant information for prior or subsequent time-frames?

Robert E. Williams: Yes, Your Honor, that is correct.

Unidentified Justice: You really would have to, under that Oklahoma Press case, wouldn't you?

Robert E. Williams: The question of its relevance, of course, would be determined under the usual standards of subpoena enforcement procedures, but it is a standard that is easily met at that stage, and we are not arguing that they can't look into those materials given a valid charge and notice.

Unidentified Justice: The concern, obviously, would be that if we were to agree with you, you don't want to put the EEOC in the position of having to have a mini-trial every time they issue a subpoena.

Robert E. Williams: No, and that is not the concern.

In fact, we believe, Your Honor, that the prospect of litigation would be... of that type of litigation would be reduced, rather than increased, by letting the Respondent know upfront what the charge is based on.

If a adequate charge and valid notice is given, then really the only complaint that a Respondent could raise is if it could affirmatively show that there has been some abuse of discretion or that the Commission is clearly acting outside the scope of its powers.

That would be in the very unusual situation.

We think that these concerns about a flood of mini-trials at the outset of every case are greatly overstated.

Unidentified Justice: Do you contend that a Respondent in a proceeding like this, such as Shell, has any right to challenge the facts produced by the Commission and saying those facts aren't correct; in other words, we have other facts, so let's find out whose version of the facts is correct at this stage of the proceeding.

Robert E. Williams: That's not our argument, Your Honor, no.

I would like to address--

Unidentified Justice: May I ask about the procedure.

Robert E. Williams: --Yes, Your Honor.

Unidentified Justice: Do you still maintain... Do you maintain that you could have raised these issues in an independent judicial proceeding?

Robert E. Williams: No, we're really... Given the posture in which the case is before this Court, we are really only dealing with the subpoena enforcement procedure.

Unidentified Justice: It is your position that in a subpoena enforcement proceeding, you contest the sufficiency of the charge.

Robert E. Williams: Yes.

Unidentified Justice: Any defect in the charge at all can be raised.

Robert E. Williams: Yes.

Unidentified Justice: Are there precedents for that procedure?

Robert E. Williams: Yes, Your Honor.

Every case that we are aware of that has involved these requirements of the sufficiency of a Commission charge, the Dean Witter case, the K-Mart case, the Staley case in the Seventh Circuit, none of those cases has held that the Respondent can't charge the sufficiency of the subpoena... or the sufficiency of the charge in the subpoena enforcement proceeding.

They have all allowed that charge.

None of them have been dismissed on the basis of the SOCAL case.

Unidentified Justice: So there is really no precedent at all, is your submission, for the Government's... the third part of the Government's brief?

Robert E. Williams: We are not aware of any, Your Honor.

I would like to address the legislative history briefly in response to some of the arguments that have been made.

First, the fact is, there is nothing in this legislative history that bears directly on the intended meaning of the words

"date, place, and circumstances. "

We take that as a point in our favor because it means there is no basis for giving those words anything other than their ordinary, everyday meaning.

Secondly, what is clear from the legislative history is that Congress was not willing to give this Commission completely unbridled, roving investigative powers.

They set this up as a charged based agency, rather than an agency with a self-initiating investigative process like the FTC, and other agencies.

To the extent that they gave Commission members authority to file charges, Congress took pains to see that that authority would not lead to abuse, and particularly to fishing expeditions.

That is why the 1964 Act required reasonable cause before a Commissioner could file a charge.

The concern about fishing expeditions was very explicit in the 1964 legislative history.

That same basic concern is reflected again in the compromise that was reached in the Conference Committee on the 1972 amendments with regard to the authority for the requirements for issuance of commissioner's charges.

The Senate bill would have cut back on the authority for commissioner's charges to allow their use only where there was an individual claiming to be aggrieved, who wished to be anonymous.

The Senate bill added the oath requirement and added the new notice language requiring notice of date, place, and circumstances.

In conference, the Senate receded with respect to the provision that there needed to be an individual claiming to be aggrieved who didn't wish to come forward, but the Senate prevailed with respect to the addition of the oath and the notice requirement.

Given this history, we think that it is simply not accurate to argue, as the Government does, that the '72 amendments simply eliminated any and all factual pleading requirements or any requirement to articulate the basis for a charge.

What it did was, it replaced general language of the '64 Act, which required that a charge set forth the facts on which it's based, with specific language requiring notice of date, place and circumstances, and the oath.

The point is, for the first time it spelled out three particular elements that have to be disclosed to every Respondent before a Title VII investigation can proceed.

We also think that it is significant that when the Attorney General's authority to bring pattern of practice cases under Section 707 of the statute was transferred to the Commission after the '72 amendments, that authority was also made subject to the requirements that there be a valid charge under oath, and supported by notice.

Those requirements had not been present when that authority was in the hands of the Attorney General.

We think the fact that they were added when the authority passed to the Commission again illustrates the unwillingness of Congress to give this Commission completely self-initiating investigative powers.

Given this background, we submit that insofar as commissioner's charges can be used to initiate investigations without an independent request from an outside party, that the formal oath and notice requirements that Congress imposed must be enforced strictly... we are not saying hypertechnically, but literally... in order to avoid conflict with the reasons why Congress set this up a charge based investigative process.

We also believe, in light of the legislative history and the context of these provisions in the statute, that the oath and notice requirements ought to be read as interrelated.

If a charge didn't have to contain any facts or any specific indication of what it is based on, the oath would become practically meaningless.

We don't think Congress intended that, we think they perceived this as a meaningful requirement.

Given the statutory context, it seems clear that Congress contemplated that the information that would have to be in the notice would come from the charge.

Therefore, there would be a statement under oath setting forth these basic details.

The Commission has stressed that the statute gives it the authority to specify the form and content of charges.

But, Your Honors, that does not empower the Commission to repeal the basic statutory requirements pertaining to notice, those elements have to be present.

As long as they're satisfied, sure, the Commission can require as much or as little other information in whatever form it sees fit.

The Commission has also argued that its regulations have consistently provided that a charge is sufficient if identifies the parties and generally describes the action or practice complained of.

The fact is, the regulations relied on by the Commission for that point, it's Section 1601.12(b) of the current regulations, was not adopted until 1978.

That regulation supplanted the earlier regulation, 1601.11(b), which said that a charge would be

"deemed filed if it identified the parties, and generally described the action or practice complained of. "

Both versions then provide that a charge, after being filed, can be amended to correct technical defects of omissions.

The difference is that the current regulation provides that such a charge is sufficient without being amended, whereas the earlier version prior to 1978 required only that the charge be... provided only that such a charge would be deemed filed.

Finally, with regard to the Commission's regulations, we think the Court should be particularly cautious about deferring to the Commission's standards for a valid charge insofar as they are applied to the Commission's own members.

It may be necessary at times to apply formal requirements leniently in order to avoid injustice to individuals who may not be sophisticated in the procedures.

But we see no reason why the Commission shouldn't hold its own members to a standard that at least fully satisfies the requirements of the statute.

We don't think that there is anything burdensome or disruptive about requiring the Commission to do that.

No one is arguing here that the Commission has to disclose its entire investigative file, all the facts in its possession, that is certainly not what the Eighth Circuit required.

We feel that that is the fallacy of those courts... the other circuits that have ruled in such a way as not to give effect to the circumstances requirement of the statute.

They failed to see that there is a middle ground here.

There need not be a choice between a strict factual... detailed factual pleading requirement on the one hand, and no standard at all on the other.

We think that as a matter of policy, early disclosure of the basic facts that the Commission relied on in deciding to file a charge would help to focus the issues; would lay a better groundwork for conciliation; would assist both the Commission, district offices, and the Respondent in identifying facts and data that might be relevant; would help to promote early voluntary compliance--

Unidentified Justice: As a matter of policy, of course, you can make some very strong arguments the other way.

The Federal Rules of Civil Procedure have worked pretty well.

They pretty well limited fact requirement almost out of existence in its notice pleading.

It seems to me that your strongest case is based on the statute, and not on what be the best policy for Congress to choose.

Robert E. Williams: --I would agree that the principal argument is based on the statute.

I do think, though, Your Honor, that in a statute such as this, which places such heavy emphasis on voluntary compliance and conciliation, it is relevant to consider the impact that the Commission's stonewall approach of not disclosing anything has on the relationships between the parties at the early stage.

If the Respondent knows basically what the Commission is basing its case on, he may be able in many cases to come forward with an explanation or some exculpatory data at the very outset of the investigation that will obviate the need for this kind of extremely time-consuming, and expensive probing into every aspect of its employment practices.

So we think that that policy consideration is simply... is consistent with the literal interpretation of the statute.

I haven't said much to this point about the date requirement, Your Honors.

Obviously, the date of an alleged violation is somewhat more difficult to spell out in a case involving a continuing practice, or an alleged continuing practice of discrimination, than it is in an individual discharge situation.

But we still think that a fair construction of Section 706(b) requires something more specific than a mere reference to the effective date of the act, particularly where there is nothing else recited in the charge that would indicate any basis for the selection of that date.

In other words, the date and circumstances notifications may compliment one another.

The circumstances when properly set forth should indicate why the date chosen is a good faith estimate of the probable time periods of the violations.

A date that would be insufficient standing alone, might be sufficient in the context of a recitation of circumstances.

In the worst offender situation that the Government cites, it should be relatively easy to set forth circumstances that would support a starting date going all the way back to the beginning of the Act.

In other situations, the dates may have to be more specific in order to make it clear what the circumstances are that are being referred to.

Without something more than a mere insertion of the July 2nd, 1965, date is no more... is really no more informative than a citation to the Act itself.

In summary, let me just emphasize again that this is a straightforward case of statutory construction.

To uphold the Commission's construction is to read the statute as if the words "date, place and circumstances" were not there.

To affirm the decision below is to give those words their ordinary meaning.

This does not require a choice between a hypertechnical pleading standard or no standard at all.

We think the Eighth Circuit properly perceived a middle ground.

We do believe, though, Your Honors, that since the case is here that some further clarification of what the terms "date and circumstances" mean in the context of a systemic discrimination case, based primarily on statistics, might be helpful.

We suggested some fairly minimal factors in our brief at Footnote 38 that we think should be required in a case such as this.

Unidentified Justice: May the Commission file a charge just at the sheer request of another party?

Robert E. Williams: If there is a complaint or request from an individual, yes, the Commissioner can file a charge to--

Unidentified Justice: What if the Commission just gets a letter from somebody that complains in exactly these words that were in this notice, that this company has since the date of the Act discriminated against women and Blacks in certain categories, period, and the Commission files the charge in those very words, and gives notice in those very words.

Robert E. Williams: --I think, then, Your Honor, the charge would be deficient because the individual's complaint has not complied with the basic requirement that the date, place and circumstances be specified.

Unidentified Justice: So you're saying that the Commission may not file a charge based on the kind of a letter that I indicated.

Robert E. Williams: Not without something more.

If there is some... I think it is appropriate, Your Honor, to interpret those terms perhaps somewhat more leniently where a layperson, an individual is filing the charge.

The Commissioner's charge then might say,

"Based on a complaint received from an individual... The Eighth Circuit indicated that it should-- "

Unidentified Justice: So that any kind of a charge, in any circumstance, the Commission must satisfy this "circumstances" requirement.

Robert E. Williams: --Yes, Your Honor.

If there are no further questions, the company will rest on its brief.

Chief Justice Warren E. Burger: Very well.

Mr. Wilkins, do you have anything further, you have three minutes remaining.

REBUTTAL ARGUMENT OF RICHARD G. WILKINS, ESQ. ON BEHALF OF THE PETITIONER

Richard G. Wilkins: Just one or two points, Mr. Chief Justice.

We specified, or the Government specified in its charge the date, place, and circumstances of the Respondent's alleged discriminatory conduct.

The statute simply does not require us to file a bill of particulars before we can begin administrative investigation.

Mr. Justice Stevens, responding to your inquiry regarding SOCAL, we believe... the Government believes that it is very clear that you should not, even in a subpoena enforcement proceeding, inquire beyond the facial validity of the charge.

This charge in this case was facially valid.

Indeed, the Court's prior precedent in subpoena enforcement cases is very clear that inquiry is limited--

Unidentified Justice: How do you know whether the charge in this case was facially valid?

Richard G. Wilkins: --We gave the date, place, and circumstances of the alleged discriminatory conduct.

Unidentified Justice: If the Eighth Circuit had agreed with that, they would have--

Richard G. Wilkins: They wanted more than the date, place, and circumstances.

They wanted the facts.

Unidentified Justice: --You are saying, though, that the question of whether the circumstances requirement has been complied with is something that can be raised in a subpoena enforcement proceeding.

Richard G. Wilkins: If--

Unidentified Justice: Surely there is a yes or no answer to that, Mr. Wilkins.

Richard G. Wilkins: --Well, the subpoena enforcement proceeding should not become a forum for broad-base inquiry into such questions as whether or not the Commission had more facts, whether they could have given more information.

Unidentified Justice: That doesn't help us much.

Is it yes or no?

Is the answer to my question yes or no?

Richard G. Wilkins: If you could restate your question, I will give you a yes or no answer.

Unidentified Justice: May the question of whether the circumstances requirement of the statute has been complied with in the notice be raised in a subpoena enforcement proceeding?

Richard G. Wilkins: Yes, but it should be determined on the face of the subpoena enforcement... on the face of the charge itself.

If you go beyond that, as we state on page 45 of our brief, we list a whole range of administrative agencies that have some sort of sufficiency requirement before they can commence their investigation, they must base a charge on reasonable cause, et cetera... If the Court goes beyond facial validity, the first salvo in any sort of litigation is going to be whether or not the charging party had enough facts.

In civil litigation in District Court, it could become--

Unidentified Justice: Nobody is arguing that you should go beyond the facial validity.

Shell doesn't contend you should go beyond the facial validity.

We are just saying that one element of the facial validity is whether the circumstances requirement has been complied with.

Richard G. Wilkins: --Exactly.

But the only purpose of the circumstances requirement will be to give some sort of notice.

In this case, that purpose has been fulfilled.

If they had more specific facts, if they had a more precise date, as they claim they need, or more precise factual underpinning that it was in the broom that they were excluded, instead of just from the general EEO-1 categories, that wouldn't limit the administrative investigation.

The administrative investigation can still inquire into the patterns of practices outside the specifics of the charge.

So the supposed benefits of giving them the specifics and the factual specifics are simply illusory, because--

Unidentified Justice: What is you think that one of the purposes for requiring the circumstances was to assure that the Commission didn't have unlimited discretion to file a charge, that it was a fact-based... that it had to be a fact-based charge.

If the Commission has facts, it should summarize them in the notice, and thereby carry out Congress's intention not to file charges just for the purpose of having an investigation.

Richard G. Wilkins: --That argument makes some sense assuming that that is what Congress indeed did.

The Government submits that the legislative history of this Act is clear that Congress did not impose such a requirement.